Complainant

Respondent

Anonymised Parties

Employee

Supplies Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018737-001

26/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018737-002

26/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018737-003

26/04/2018

The Complainant’s employment was terminated at the end of 2017. The Complainant says it was unexpected and unwarranted and the Respondent says it was the operation of a LIFO policy in circumstances where a supply company was failing and costs (including payroll costs) needed to be curtailed.

The Complainant claims she was unfairly selected for Redundancy in circumstances where she says there was no demonstration of the need for a Redundancy nor was she given the criteria operated to establish what role should be made redundant. The Complainant says she was called into a one on one meeting with General Manager and her employment was terminated.

The Respondent gave evidence that the company that the Complainant had been engaged to work in was failing and that there was a need to cut costs with the complainant’s salary becoming an obvious target. The Respondent says this was the first of several Redundancies and the Complainant was not replaced.

I have carefully considered the evidence adduced. Both parties provided me with written submissions and I additionally heard all relevant oral evidence. The Complainant was engaged as a Business Development Manager in early 2016 and ultimately came to work for the company nominated herein in and around May of 2016 by way of a presumed transfer of undertaking. The Complainant worked for about 18 months in this position. The Complainant’s basic salary was €36,000.00 per annum and it was intended that a bonus and commission scheme would also operate. The Respondent company had about 10 employees and was principally in the business of Contract Cleaning supplies. A sister (though separate) company also operated by the Respondent General Manager (MR)employed up to 450 contract cleaners.

By August 2017 there appears to have been a clear message at the monthly meetings that things were not going too well with the Respondent supplies company. The Respondent says that the Complainant would have been aware of this fact and therefore when the complainant was called into a meeting on the 24th of November and made Redundant. In its submission the Respondent states that it operated a LIFO rule but additionally confirmed that the Complainant’s selections stemmed from an alleged underperformance as regards meeting targets set.

Even though the Contract of Employment allows for a three-month Notice period, MR only afforded the Complainant one month. I note that the Complainant made a claim for her Contract Notice payment under the Minimum Notice and Terms of employment Act 1973 where as it should have more properly been brought under the Payment of Wages Act 1991, as the 1973 Act only allows for Statutory Redundancy. I accept that the Respondent was aware that the issue of payment of three months of notice was a complaint being made by the Complainant.

The Complainant states that there was no preamble to this meeting of 24th of November and she had no idea when MR texted her to say he wanted to meet her that in fact he was going to terminate her employment by reason of her being selected for Redundancy. The Complainant was not forewarned, was given no opportunity to make her case and given no right of Appeal. It was a fait accompli. The manner in which the Complainant was selected for Redundancy was neither reasonable nor fair in all the circumstances. I do however accept that given the Respondent company’s financial difficulties, the complainant would most likely have been made Redundant in any event at some point between November 207 and the spring of 2018 when more Redundancies were made in the Respondent company. I accept that the Complainant was never replaced.

To her credit the Complainant secured employment not too long after the Redundancy.

I have reviewed the wage slips provided and note that there was a regular monthly wage as well as a regular commission paid to the Complainant. Expenses were paid over and above income. I am satisfied that the Complainant’s earnings amounted to in and around €881.00 gross per week. The Complainant’s current earnings are somewhat less and she earns €602.00 per week. I could find no evidence of a Bonus (over and above the commission) ever having been paid.

The Complainant herein has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and the Complaint herein fails in circumstances where it is accepted that the Complainant has received a sum equivalent to Statutory Minimum Notice.

The complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage – I am satisfied that the terms of The Complainant’s Contract allowed for a Notice period of three months and only one month was paid the Complainant is therefore entitled to a figure of €7,048.00 in respect of the deduction made under the payment of Wages Act

The Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 – I am satisfied that the Complainant was Unfairly dismissed and sustained remunerative losses as a result. The Complainant obtained alternative employment during what should have been her Notice period. I am satisfied she should be entitled to the difference between what she was being paid in her new employment and what she was getting paid in her old employment for a twenty-four-week period. I award €6,800.00.